THAKUR GAYAN SINGH Vs. BABU LAL

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption in respect of a sale-deed dated the 27 February 1919 executed by the delendant No.2 in favour of Babu Lai, defendant No.1. The plaintiff frankly confessed that he was neither a co-sharer in the village nor a relation of the vendor. Sis claim was based entirely on the ground that he was a resident (bashinda) of the village Mahwat in which the property sold was situated. It was alleged that there was a custom prevailing in this village under which, in case co-sharers refused to pre-empt, the right of preemption was given to residents of the village.

(2.) In the written statement the defendant-vendee admitted paragraph 1 of the plaint which had stated that the plaintiff was a resident of the village in question. It was, however, disputed that there was any such custom in existence. The plaintiff's allegation as to the incorrect recital of the sale consideration was also challenged.

(3.) The learned Subordinate Judge framed several issues, issues Nos. 2 and 3 of which were directed to the question whether a custom of pre-emption in favour of a mere resident, who was not a co-sharer, was proved or could be enforced in law. He came to the conclusion that no such custom had been established by the evidence produced in this case and that, in any case, such a custom would be uncertain and unreasonable and, therefore, incapable of being enforced by a Court of Law. He accordingly dismissed the suit without going into the question of the correct price of the disputed property.